Posts Tagged ‘extrajudicial assassination’

Original commentary published on November 13, 2013 on PrivacySOS blog.

Some of us are very worried. If you regularly read this blog, you are likely one of the worriers.

We worry because we are surveillance state watchers, because we are people concerned about the degree to which US culture has been warped by fear-driven narratives that cast Muslims as the enemy in a never-ending, borderless ‘war on terror’. We worry because we see state institutions, seemingly hell-bent on shredding the Bill of Rights, deploy that fear in the service of any number of anti-democratic horrors: extrajudicial assassination, indefinite detention, secret law, mass suspicionless surveillance, the militarization of the police.

An authoritarian impulse to control, monitor, and oppress appears to guide the hands of our most powerful agencies – those secretive, three letter organizations that suck up increasingly substantial quantities of our hard earned money, with little besides repression and misery to show for it.

Senator Rand Paul’s (R-KY) speech has helped abate the helplessness many feel towards our nation’s disastrous course toward ever-eroding individual rights and endless war, by showing that one speech from a junior senator can compel the nation’s vast national security apparatus to account for itself.

A wide array of members of Congress, as well as prominent media pundits praised Senator Paul’s efforts. In his filibuster, Sen. Paul quoted material authored by numerous liberal commentators, including Glenn Greenwald, Conor Friedersdorf, Charles Pierce, and Kevin Gosztola. Although Senator Paul’s efforts garnered their most vocal support from Tea Party Republicans, a recent poll indicates a substantial majority of the public backs his position rejected targeted assassination of American citizens without trial.

Last week, Senator Rand Paul (R-TX) forced a long overdue conversation in Washington about checks and balances on executive power. Yet few observers recognize the ultimate importance of his actions, or why the Senate’s confirmation of the new CIA director remained premature.

Prompted by Sen. Paul’s filibuster last Wednesday, Attorney General Holder wrote a letter the following day, acknowledging that our government lacks authority to execute Americans within the US without trial.

His concession is welcome, but must be taken with a grain of salt. It behooves observers to understand why, for several reasons, Holder’s statement may be less secure than we would ideally hope.

Accepting disclosure without investigation

Much of the controversy surrounding Brennan’s nomination concerned mere disclosure: whether the executive branch would let Congress read the administration’s legal analysis governing the targeted assassination program. President Obama apparently heard the message, admitting in his State of the Union address that more transparency is required.

The result proved underwhelming. One congressional committee received a single legal memo among several, which did not even purport to delineate the boundaries of the assassination program, but rather explored the use of deadly authority against a single target among several hundred who have been killed, including at least four US citizens.

Mere disclosure of some OLC memos to some Senators is insufficient.

Meaningful congressional oversight requires full access to all the legal memos, as well as active investigation of the underlying facts. It is not enough to simply read executive legal analyses paying lip service to constitutional values routinely violated on the ground.

Last year, the Senate Intelligence Committee concluded a thorough investigation of torture, which produced a report recognizing torture as an international human rights abuse that ultimately undermined US national security by producing false intelligence, eroding pro American sentiment abroad, and helping our enemies recruit foot soldiers.

Yet, reflecting its pattern of embracing secrecy while claiming transparency, the Obama administration has refused to declassify the report. It is only because neither the press nor the public know the facts that irresponsible Hollywood fiction proved so problematic and controversial.

Forgotten in commentary on Brennan’s confirmation were some troubling details suggesting that, on both torture and drone strikes, transparency remains inadequate.

Finally, beyond disclosure of the OLC’s legal memos are important questions about how the standards in them are applied to real facts. The Obama administration and CIA still refuse to answer congressional questions beyond the memos—such as, “How much evidence does the President need to determine that a particular American can be lawfully killed?” These questions are crucial, but Brennan’s confirmation could ensure that Congress receives few answers.

How the facts suggest elastic powers

Brennan spoke to the committee of the “great care” taken to ensure that drone strikes kill only their intended targets. What little we know about them suggests otherwise.

A bipartisan filibuster of John Brennan’s nomination to lead the CIA riveted Washington on Wednesday. Senators from both sides of the partisan aisle, led by Sen. Rand Paul (R-KY), took to the Senate floor to force further debate on a nomination that should not proceed.

I will speak as long as it takes, until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court.

Brennan’s nomination presents a rare window of accountability, and Senators are right to use it as an occasion to challenge an administration prone to self-congratulation about transparency, even while extending government secrecy and executive fiat to unprecedented levels.

How we got here

Brennan was deemed unfit to lead the CIA four years ago, because of his record at an agency whose institutional hands remain stained by human rights abuses for which it has never faced (and indeed actively obstructed) justice.

Even worse than the CIA’s human rights abuses, or its self-serving destruction of evidence of international crimes, is an expanding set of disturbing claims by executive branch officials that must be rejected for our Constitution to survive.

Attorney General Eric Holder testified about the power to kill Americans without trial before the Senate Judiciary Committee on Wednesday, after sending a related letter to Sen. Paul the day before. His letter asserted the authoritarian power to kill Americans without trial, even within the United States, followed by congressional testimony arguing that Congress’ Authorization to Use Military Force (AUMF) in Afghanistan could also justify military action within the US.

Those conclusions, put simply, render our country unfit to be considered part of the free world, let alone its leader.

Senators from both parties had previously raised concerns about assassination without trial, which is absolutely illegal under not only the US Constitution, but even the Magna Carta. The administration’s responses to their inquiries unfortunately make matters only worse.

This week’s developments

On the one hand, Holder claims that the authority to arbitrarily kill Americans within the US could be triggered only by an extraordinary event on par with Pearl Harbor or the 9/11 attacks. On the other hand, the few legal limits that executive officials have previously acknowledged are themselves routinely violated in practice. In other words, nothing would prevent this extreme power from being used abusively.

Until this week, the battle over Brennan’s nomination had focused on disclosure: whether the Holder Justice Department (and, in particular, its Office of Legal Counsel infamous for authorizing torture under the Bush demonstration) would give Congress key documents that members have long sought to identify the legal standards under which the administration conducts drone strikes targeting American citizens.

Yesterday, I attended the Senate Intelligence Committee’s hearing on the nomination of John Brennan to lead the CIA. More accurately, I attended five minutes of the hearing, before Senator Dianne Feinstein (D-CA) kicked out the public after repeated criticism of Brennan’s record on torture, human rights, and extrajudicial assassination and executive fiat.

If the rest of the committee members did their jobs as well as Senator Ron Wyden (D-OR), the nation wouldn’t need protesters to ask the tough questions that no one in the White House or CIA has answered.

Some Senators raised important questions, but the hearing was generally disappointing: Brennan bobbed and weaved, evaded accountability for documented abuses, and refused either to offer more information to Congress, or to acknowledge that torture (which the CIA recently committed before obstructing justice by destroying dozens of videotapes documenting torture) is illegal.

While the committee never heard the issues I’d hoped to raise, several observers have written thoughtful pieces explaining why Brennan has not met the burden necessary to justify Senate confirmation as CIA Director. While they shed light on some important issues that Brennan has not resolved, several other questions remain. More below the jump….

This is the first part in a series examining opportunities for the Obama administration to return, in the wake of the 2012 election, to the president’s promises from the 2008 campaign to restore liberty and security. Part II and part III are also available.

President Obama’s reelection has sparked an onslaught of analysis attempting to define the agenda for his second term. Will it reflect the vision of restoring liberty and security on which the president ran in 2008, or the disappointing passivity towards the national security state that characterized his first term?

More to the point, will President Obama’s legacy include emerging American authoritarianism, or instead the recovery of constitutional freedoms lost over the past decade? While machinations in Washington will of course influence the answer, We the People will play a crucial role, well beyond the 2012 election, in determining the outcome.

Obama’s legacy of constitutional violations

With the broad strokes that history affords the past, any president’s legacy usually shrinks within a decade to two or three elements. For instance, Clinton is remembered for presiding over the tech boom and resulting federal surplus, dismantling welfare and escalating mass incarceration, and surviving a partisan impeachment effort prompted by sophomoric sexual indiscretion.

George H. W. Bush’s legacy includes the first Iraq war, failing to energize the economy, and a premature pledge not to raise taxes. We remember Ronald Reagan for overcoming the Soviet Union and its satellites (even if his methods ensured the contemporary budget crisis, created al-Qaeda, and emboldened Iran), heralding “morning in America” to end a recession, and after surviving an assassination attempt, conveniently growing unable to recall more or less anything about compounding scandals that stained his second term.

In these broad strokes, President Obama’s legacy will likely include memories of the historic debate over healthcare policy in 2009, and the recurring budget crises that, combined with GOP intransigence, have periodically brought Washington to a standstill under his administration. The most enduring part of his legacy, however, will be the entrenchment of the national security state on his watch.

Beyond merely failing to reverse the trajectory of the Bush-Cheney administration, Obama’s first term extended it, pioneering new abuses while entrenching old ones.

While Bush & Cheney violated international law by authorizing torture, it took the Obama administration to decide that such criminal acts would go unpunished (or even investigated), ensuring their recurrence and nailing the coffin of international human rights.

50 years ago, a president with the deepest military roots among any who has held office since then–no mere General, but the Supreme Allied Commander during World War II, Dwight “Ike” Eisenhower — issued a disturbing warning about a threat to our democracy posed by “an immense military establishment and a large arms industry” that, together, he described as “the military-industrial complex.” President Eisenhower said, in no uncertain terms, that:

“[W]e must guard against the acquisition of unwarranted influence…by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.

We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.”

Ike observed the larval stages of a dynamic that has grown only more pernicious since he left office. In the decade since 9/11, under Presidents Bush and Obama alike, our military-industrial complex has initiated not only various military conflicts abroad, but also a domestic war on the constitutional rights of the American people.

The refrain is familiar: President Obama faced too many headwinds in his first four years to fulfill his various campaign promises, including his 2008 theme of restoring liberty amd security. In his second term, we hear, he will finally achieve the real change he promised four years ago, when campaigning to end and reverse the authoritarian legacy of President Bush.

This conventional wisdom misses some inconvenient truths about the power President Obama has enjoyed, but chosen not to use. There is no question that at many points in his time as president, his administration has faced an astoundingly hostile Senate, and an extremely conservative Supreme Court.

When he was campaigning in 2008, Obama said he opposed the unitary executive. He has now embraced the powers that come with it wholeheartedly, from aggressively guarding state secrets (whether by prosecuting whistleblowers, asserting the state secrets privilege to keep courts from reviewing national security abuses, or simply by hiding facts from the press) to initiating military aggression overseas without congressional approval. Why, then, with all the power at his disposal, is Obama’s record in the war on terror so abysmal?

It turns out that President Obama has actually used his authority as the nation’s chief executive not to diminish, but rather to expand, the so-called war on terror, extending its abuses of civil liberties to new heights even beyond the Bush-Cheney administration.

Under the Obama administration, the Justice Department has aggressively pursued many of the same tactics as Bush’s Justice Department, including using the state secrets doctrine to block challenges to surveillance, expanding definitions of terrorism to include non-violent activities such as merely translating texts between languages, and prosecuting “counterterrorism” prosecutions of fake plots initiated by FBI informants. It has also stretched even beyond the Bush-Cheney high water marks, engaging in illegal assassinations of American citizens overseas, and signing a law that could enable indefinite military detention within the US.

In the first instance, regarding state secrets, one case in particular stands out: Al-Haramain Islamic Foundation v. Obama. In that case, Al-Haramain, a charity organization, found itself listed as a supporter of terrorism. Unlike every other target of government surveillance, Al-Haramain then accidentally received a faxed document proving that it had been targeted by warrantless wiretapping. This crucial document placed the case in a different setting than Clapper v. Amnesty Int’l, for instance, which the Supreme Court heard just last week to decide whether the NSA stands above the law or is instead subject to suit.

Haramain prompted a bizarre saga, in which first the Bush, but then the Obama administration, asserted the state secrets doctrine to prevent Al-Haramain’s attorneys from using (or sometimes even mentioning) the leaked documents. In fact, Justice Department attorneys threatened to seize documents from Judge Vaughn Walker if Al-Haramain attorneys were provided with access to them. The Justice Department pursued the case to the Ninth Circuit Court of Appeals, where the Court ruled that the government did not have to pay damages, but went so far as to criticize the Justice Department’s tactics in the litigation.

As to expanding definitions of terrorism, another recent case stands out as an egregious example of the Obama administration’s assault on civil liberties: Holder v. Humanitarian Law Project. In this case, the Humanitarian Law Project (HLP) challenged material support provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA), particularly to assert limiting principles based on the First Amendment. HLP wanted to:

advise the Kurdistan Workers’ Party (PKK) — which for years has been on the U.S. terrorist list — on filing human rights complaints with the United Nations and conducting peace negotiations with the Turkish government.

Attorney General Eric Holder pushed for a draconian interpretation of AEDPA that would outlaw any aid to groups designated as promoting terror, including, perversely, aid aimed to encourage peace. The Supreme Court agreed, allowing the definition of material support to include even cases where the defendant has neither committed violence, nor ever supported it.

The FBI’s record has not been much better under the Obama administration. Since the abuses of COINTELPRO, there has been a ten year term limit for directors of the FBI. In July of 2011, Obama signed into law a two year extension for Robert Mueller, who had directed the FBI under Bush, despite the FBI’s serious civil liberties abuses too extensive for this article. In particular, as we have discussed many times in this blog, the FBI continues to use agent provocateurs to fabricate terrorism charges, typically against troubled or mentally ill young men. These cases are then prosecuted wholeheartedly, and lauded as counterterrorism successes, as much by Obama’s Justice Department as by its predecessors.

Among the most tragic casualties of the war on terror is the separation of powers that our Founders envisioned to help keep America free. Not only has executive power expanded to disturbing – and profoundly dangerous – proportions in the decade since the 9-11 attacks, but Presidents from both major parties have promoted this transformation.

Rep. Adam Smith (D-WA) understands this well enough to have actively defended constitutional rights, introducing important legislation to restore due process after the latest defense authorization act allowed the indefinite domestic military detention of Americans without charge or trial. Yet in the Romney-Cheney Doctrine, he implies a contrast that is more imagined than real. He writes:

It’s no secret that Cheney was the driving force behind the Bush administration’s failed foreign policies…[O]f Romney’s 24 special advisors on foreign policy, 17 served in the Bush-Cheney administration….The last time they were in government, it was disastrous….

We can’t afford to go back to the failed policies of the past…America’s security depends on moving forward to confront the threats of the future.

While the foreign policy visions of the 2012 presidential candidates do indeed differ, the most striking element of Rep. Smith’s article is its silence on what could reasonably be called “the Obama-Cheney doctrine.”

Rep. Smith correctly notes that Mitt Romney has enthusiastically endorsed the views of many Bush-Cheney administration veterans. He does not mention the Obama administration’s alignment with its predecessor’s domestic security agenda: expanding surveillance, suppressing dissent, militarizing police and intelligence agencies, aggrandizing their powers, entrenching their leadership, prosecuting whistleblowers to reinforce secret government, and ignoring the rights of the millions of people impacted by this bipartisan assault on constitutional rights.

Despite campaigning to restore liberty in the face of Bush & Cheney’s blind pursuit of a brutish (and ultimately foolish) vision of security, President Obama has not only continued their constitutional abuses but even pioneered new ones. Two looming especially large are the powers to militarily detain–or even kill–anyone (even American citizens, and their children) with neither evidence nor any judicial review.

The Obama administration announced drastic measures to curb government leaks of information this past week, just as a group of congressional representatives introduced a bill into Congress that would help limit government secrecy.

The State Secrets Protection Act, or HR 5956, would limit the power of the state secrets privilege, a legal mechanism through which the executive branch has refused to produce evidence to courts on the basis that doing so would supposedly harm national security. The state secrets privilege was an evidentiary doctrine born through a military cover-up that has expanded over time to serve as a wholesale immunity doctrine hiding various kinds of government misconduct. Throughout the post 9/11 era, both the Bush and Obama administrations have asserted the state secrets privilege to shield from judicial review various executive abuses, ranging from torture and rendition, to unconstitutional mass dragnet surveillance, and even summary executions of American citizens without trial or charge.

The State Secrets Protection Act, introduced by Rep. Jerrold Nadler (D-NY), would require judges to assess the validity of a state secrets claim, instead of automatically falling in line with the executive assertion that hiding certain evidence is vital to national security. Additionally, the bill would require judges to consider alternatives to simply dismissing a case (such as reviewing a case under seal) when sustaining a claim to the privilege.

Meanwhile, the Obama administration is continuing its campaign for unchecked government secrecy. This week, Director of National Intelligence James Clapper announced that employees who are eligible for polygraph tests will be asked about their interactions and discussions with journalists. Additionally, there will be new penalties instituted for government employees who leak information to news sources.

Not only is the reasoning behind this secrecy flawed, but it leaves serious doubt as to the defensability of government actions. Gene Healy, Vice President of the Cato Institute, said it best in a recent op-ed: “As the self-styled ‘most transparent administration in history’ continues to shield more and more government operations behind a veil of secrecy, it’s worth asking, what is it so afraid of?”